Helen Thompson | Returning to Democracy: The British Left and the Constitutional Temptation of the European Union

For a long time, many on the left were democratically suspicious of the European Economic Community (EEC), and its successor, the European Community (EC). As the primary organised expression of the left, the post-war Labour Party was dominated by those who wanted to realise a national project won at the ballot box to a very different end from realising a technocratic economic and political union with other European countries. Of course, this Euroscepticism was far from uniform, and the second Wilson government made an application to join the EEC. Nonetheless, the Labour Party that Clement Attlee’s leadership forged largely accepted the primacy of the nation state as the decisive site of political power and the strengths of the British constitutional tradition as a democratic framework within which that power could be exercised. For the most part, post-war Labour politicians were also comfortable professing a faith in the capacity of the British people to play their part in national representative democracy. By the mid-1990s, however, little remained within the party of that Eurosceptic tradition. Even though the New Labour governments did insist on national sovereignty over monetary policy, its members still appeared ill at ease with political discourses that accepted the place of a national people as the basis of democratic political community or claimed any merit for the singularity of Britain’s constitutional tradition. As a consequence of the repudiation of this Eurosceptic heritage, Labour has been left to confront the wreckage of Britain’s membership of the EU without any political language that it can claim as its own in the democratic political space that Brexit has opened, even as Jeremy Corbyn has accepted the referendum result and positioned Labour as a pro-Brexit party.

The left’s path to this political lacuna began with the Labour party’s wholehearted embrace of EC membership in the aftermath of Jacques Delors’ speech in 1988 to the Trade Union Congress. At a time when the Labour party still did not have a clear electoral strategy for returning to power, Delors effectively told the left that inside the EC it could protect what remained of its post-1945 political victories by insulating them in a ‘social European’ sphere away from the reach of a Conservative government. Within a few years of Delors’ speech, virtually all meaningful debate within the Labour party over the EC ended, even though very few in the party had any interest in pursuing Delors’ general vision of a European political union built around monetary union.

In seeing the EC as a restriction on the Conservatives’ freedom of action, Labour in effect disavowed its own previous commitment to democratic politics practiced within the British constitutional tradition. Representative democracy requires those who lose to accept the result of periodic elections to determine who exercises power. From its eighteenth-century origins, representative democracy tied that stipulation to nationhood, whereby a national people defines a political community in which winning and losing at politics can safely occur above all by allowing losers to accept the outcome as legitimate. After Delors, the British left effectively saw in EC law a means of diluting the consequences of electoral loss. This desire to evade the full force of democratic politics demarcated it from other European left-wing parties whose leaders were willing to shift power away from the nation state to the supranational sphere when they thought their substantive ends could be easier realised in a European context and hoped to democratise that new site of power. The Labour Party, by contrast, remained wed to the national sovereignty part of the nation state whilst wishing to constrain the exercise of that sovereignty in relation to elections. If, under this reckoning, there were laws to which no British parliament had consented, it did not matter as long as those laws stopped the left’s adversaries from action they might otherwise have taken. Put differently, for the sake of constraining the right and not to further any end of the left, Labour effectively treated the European Union (EU) as a de facto constitutional order replacing the British constitutional tradition based on parliament.

In making this move, the left isolated itself from the constitutional complexity that from the onset bedevilled Britain’s membership of the EU. Britain’s accession to the EC in 1973 was a constitutional fudge precisely because those who drafted the European Communities Act of 1972 understood just what a monumental political step openly acquiescing to a new European constitutional order would have been. In practice, EC law did have primacy over British law. But Britain joined the EC without the British parliament accepting the principle, asserted by the European Court of Justice in 1962, that the EC treaties created their own legal system existing independently of any legislation passed by the legislatures of EC member states. As Lord Reed’s dissent in Miller v Secretary of State for Exiting the European Union illuminated, parliament gave effect to EU law in Britain in a way that was “inherently conditional” on the application of the EU treaties in Britain and, consequently, “no fundamental rule governing the recognition of sources of law […] resulted from membership of the EU”. Although the majority in the Miller case insisted that this position could not have been what parliament intended, it almost certainly was, not least because for the Heath government to have pushed legislation that formally proclaimed “a fundamental change in the constitutional arrangements” of Britain would have doomed the legislation.

In retrospectively conjuring an implicit fundamental constitutional disjuncture in 1973, the post-Delors Labour party ran roughshod over political capital it had held in British democratic politics since the 1940s. The Labour leadership in the early 1970s stood as the guardian of the place the British constitution gave to parliament to pass all laws and to the British people to stand as the ultimate source of the authority that parliament exercised. In a speech in the House of Commons in October 1972, Harold Wilson described the 1972 Act as “an outrage against all the constitutional doctrines and practices of our democracy”, and proclaimed that the motive of the bill was to “destroy the power of this Parliament”. He promised that a Labour government would subject membership of the Community “to the British people for final acceptance or rejection”. For Wilson, it was the Conservatives who wanted to use the EC to cheat in national democratic politics. Heath, he charged, “claimed to represent the British people” but actually was “content, even enthusiastic, at the prospect of a European authority imposing on the British people by force of law measures he would not wish to put himself before Parliament”.

Post-Delors Labour disavowed this political discourse in which British citizens possess by virtue of their membership of a historical political community ‘ancient liberties’ and ‘ancient rights’, including the right to choose freely their own parliament to decide upon the laws to which they are subject and by which their lives can be changed for the better. It also sacrificed a once politically potent story for the left arising from this narrative in which citizens had the potential through elections to make power responsive to their beliefs and interests, and in which the purpose of the Labour Party was to give them the chance to exercise that potential. For example, the 1945 Labour manifesto proclaimed that the people had “lost the peace” after the First World War to ‘the “hard-faced men” and their political friends’ and that ‘Britain’s coming election’ would “be the greatest test in our history of the judgement and common sense of our people”. In a similar vein, Hugh Gaitskell, in his 1962 conference speech opposing EEC membership, attacked Macmillan for telling the country that “the British people [we]re not capable of understanding this issue”, and proclaimed that “we did not win the political battles of the nineteenth and twentieth centuries to have this reactionary nonsense thrust upon us again”. In sum, by turning to European constitutionalism, Labour disowned an older faith of the left in the capacity of ordinary people to be part of democracy.

As a result, the Labour Party also eventually denied itself political agency. In his attack on Heath in October 1972, Wilson showed that he understood that under any new constitutional order based around European treaty law, there was no meaningful discretionary power for the executive to act according to its own political purposes and present legislation it chose for itself to parliament to advance the interests of its electoral base. Quoting the government’s own Lord Chancellor, he declared “we do not treat treaties as scraps of paper; but we have always in practice had the power to do so, since power is a question of fact and power is the reality of sovereignty”. By forsaking that power, Labour deprived itself of opportunities to act as the political agent protecting working-class economic interests in distributional class conflicts. Nowhere did this become clearer than on the matter of the European Single Market. On the surface, the turn to support the Single Market in the late 1980s returned Labour to the strong commitment to free trade that had characterised the party from its origins to the Second World War. Yet Labour’s historical commitment to free trade had been shaped first and foremost by a strong belief that working-class interests were served by cheap food. Indeed, Labour won office for the first time in 1924 precisely because it was able to deploy this argument in the general election Stanley Baldwin called to seek a mandate for tariff reform. By contrast, by the time Labour returned to office in 1997, the Maastricht treaty had tied the Single Market to EU citizenship. In this European version of internationalism, domestic distributional matters were subordinated to supranational constitutional rights guaranteed by a European court. When the accession of the A8 states to the EU in 2004 made it necessary for the Labour government to choose whether it should accept the primacy of constitutional rules, which in this case there was an open invitation to suspend for a period of time, there was simply no-one in the upper echelons of the party who publically made any case at all that Labour should be electorally alert to the distributional class consequences of a rise in semi- and un-skilled immigration.

The legacy of that decision by the Blair government to eschew transition arrangements ultimately played a significant part in dooming Britain’s membership of the EU, not least in turning many working-class Labour voters against it. As membership became increasingly contested, Labour found itself with little to say on a central issue of British politics, reduced, as Ed Miliband was in opposing David Cameron’s promise in January 2013 to holding an in/out referendum, to complaining that giving the British people the chance to decide how they were governed was a matter of Conservative ‘party interest’ and not the ‘national interest’. Whilst some on the left urged Labour to respond similarly to the referendum by deeming the outcome the irrational product of voters foolishly led by their nefarious supposed betters, the Labour leadership has chosen to return to the democratic political path in the face of the overwhelming electoral imperative to do so and reaped some reward for doing so at the general election. Nonetheless, the task of rhetorical reinvention for the British left remains a large one. In dispensing for the best part of three decades with discourses within the party that engaged with the EU as general democratic problem and a particular constitutional one for Britain, without at any time committing to the requirements of democratic European federalism, Labour left itself without a coherent narrative about the value and place of democratic politics.

Helen Thompson is Professor of Political Economy at the University of Cambridge.